# C_2007211EN.01004401.xml

| 8.9.2007 | EN | Official Journal of the European Union | C 211/44 |
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8.9.2007

EN

Official Journal of the European Union

C 211/44

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Action brought on 10 July 2007 — Buzzi Unichem v Commission

(Case T-241/07)

(2007/C 211/82)

Language of the case: Italian

Parties

Applicant: Buzzi Unichem SpA (represented by: C. Vivani and M. Vellano, lawyers)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | Annul the Commission Decision of 15.5.2007 concerning the national plan for the allocation of greenhouse gas emission allowances notified by Italy in accordance with Directive 2003/87/EC of the European Parliament and of the Council — for infringement of the EC Treaty and the principles and rules of law adopted in its application — to the extent that the national allocation plan must be altered so as to render no longer permissible rationalisation measures which envisage that the operator may maintain part of the allocated allowances in the event of ‘closure due to processes of production rationalisation’ (Article 1(4) and Article 2(4) of the Decision); |
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Annul the Commission Decision of 15.5.2007 concerning the national plan for the allocation of greenhouse gas emission allowances notified by Italy in accordance with Directive 2003/87/EC of the European Parliament and of the Council — for infringement of the EC Treaty and the principles and rules of law adopted in its application — to the extent that the national allocation plan must be altered so as to render no longer permissible rationalisation measures which envisage that the operator may maintain part of the allocated allowances in the event of ‘closure due to processes of production rationalisation’ (Article 1(4) and Article 2(4) of the Decision);

| — | Order the Commission to pay to the applicant all the costs of these proceedings. |
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Order the Commission to pay to the applicant all the costs of these proceedings.

Pleas in law and main arguments

The decision contested by this action has determined that the national allocation plan notified by Italy by letter of 15 December 2006 is incompatible with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC.

The specific point at issue is the possibility for the operator to maintain part of the allocated allowances in the event of closure, due to processes of rationalisation, of all or part of the production installations.

In support of its claims, the applicant submits:

| — | That the defendant (the Commission) erroneously applied its own critical analysis in terms of ‘adjustment of allocations’, excluding the possibility of so-called ‘ex-post adjustments’. In that regard, the applicant accepts that any type of adjustment may distort the market and create business uncertainty and infringe Criterion 10 of Annex III to the Directive. According to the applicant, what is at issue is rather avoidance of the loss of ownership of the allocation, and therefore loss of the legal capacity to make use of it at other installations. In essence, the issue should be to avoid an obstacle to the free organisation and development of an undertaking's subjective rights, which is moreover contrary to the principles of reasonableness, proportionality, and protection of the environment and competition, pursuant to Article 5, Article 174 and Article 157 EC. |
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That the defendant (the Commission) erroneously applied its own critical analysis in terms of ‘adjustment of allocations’, excluding the possibility of so-called ‘ex-post adjustments’. In that regard, the applicant accepts that any type of adjustment may distort the market and create business uncertainty and infringe Criterion 10 of Annex III to the Directive. According to the applicant, what is at issue is rather avoidance of the loss of ownership of the allocation, and therefore loss of the legal capacity to make use of it at other installations. In essence, the issue should be to avoid an obstacle to the free organisation and development of an undertaking's subjective rights, which is moreover contrary to the principles of reasonableness, proportionality, and protection of the environment and competition, pursuant to Article 5, Article 174 and Article 157 EC.

| — | The contested decision in addition contradicts the logical premises on which it is based. Specifically on this point, in recital 4 to the contested decision the Commission itself admits that the Directive envisages the possibility that Member States may introduce adjustments, provided that the effect of adjustment is not retroactive, and that it does not harm the functioning of the Community system. In the present case, the operator of an installation which is closed will continue to be present on the market and to operate at other authorised installations. In the words of the Commission itself, an ‘adjustment of allocations’ should therefore be possible. |
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The contested decision in addition contradicts the logical premises on which it is based. Specifically on this point, in recital 4 to the contested decision the Commission itself admits that the Directive envisages the possibility that Member States may introduce adjustments, provided that the effect of adjustment is not retroactive, and that it does not harm the functioning of the Community system. In the present case, the operator of an installation which is closed will continue to be present on the market and to operate at other authorised installations. In the words of the Commission itself, an ‘adjustment of allocations’ should therefore be possible.

| — | The defendant has failed to explain the reasoning which led it to hold that the criticised scheme was incompatible as ‘ex-post adjustment’. |
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The defendant has failed to explain the reasoning which led it to hold that the criticised scheme was incompatible as ‘ex-post adjustment’.

| — | Infringement of the principle of non-discrimination, in the light of the provisions of the Commission's decision approving the national allocation plan of the United Kingdom. |
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Infringement of the principle of non-discrimination, in the light of the provisions of the Commission's decision approving the national allocation plan of the United Kingdom.

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